THIRD SECTION
CASE OF BOGONOSOVY v. RUSSIA
(Application no. 38201/16)
STRASBOURG
5 March 2019
This judgment will become final in the circumstances set out in Article 44 § 2 of the
Convention. It may be subject to editorial revision.
BOGONOSOVY v. RUSSIA JUDGMENT 1
In the case of Bogonosovy v. Russia,
The European Court of Human Rights (Third Section), sitting as a
Chamber composed of:
Vincent A. De Gaetano, President,
Helen Keller,
Dmitry Dedov,
Alena Poláčková,
Georgios A. Serghides,
Jolien Schukking,
María Elósegui, judges,
and Stephen Phillips, Section Registrar,
Having deliberated in private on 5 February 2019,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 38201/16) against the
Russian Federation lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by two Russian nationals, Ms Vera Vladimirovna
Bogonosova (“the first applicant”) and Mr Georgiy Ivanovich Bogonosov
(“the second applicant”), on 21 June 2016.
2. The applicants were represented by Mr V.A. Kirillov, a lawyer
practising in St Petersburg. The Russian Government (“the Government”)
were represented by Mr G. Matyushkin, Representative of the Russian
Federation to the European Court of Human Rights, and then by his
successor in that office, Mr M. Galperin.
3. The applicants complained, in particular, under Articles 8 and 13 of
the Convention of a violation of their right to maintain family ties with their
granddaughter and the absence of an effective domestic remedy in that
connection.
4. On 10 November 2016 the above complaints were communicated to
the Government and the remainder of the application was declared
inadmissible pursuant to Rule 54 § 3 of the Rules of Court. The application
was granted priority treatment (Rule 41 of the Rules of Court).
5. By letter of 13 November 2018 the second applicant informed the
Court that on 29 August 2018 the first applicant died. He further withdrew
the power of attorney that he had given to Mr V.A. Kirillov.
2 BOGONOSOVY v. RUSSIA JUDGMENT
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
6. The applicants were born in 1955 and 1948 respectively. The first
applicant died on 29 August 2018. The second applicant lives in
St Petersburg.
A. Background of the case
7. The applicants were former spouses. They divorced in 1988, but
continued to live together in the same apartment.
8. The applicants’ daughter, O., married K.O.V.-S., a national of
Finland. The couple settled in Finland.
9. On 28 September 2006 O. gave birth to a daughter, M.
10. In May 2008 O. and M. moved in with the applicants in Russia.
11. On 3 April 2011 O. died of a serious illness. M. remained living with
the applicants.
12. According to the Government, during O.’s illness the applicants’
relatives Mr and Ms Z. started to help the applicants with the upbringing of
M.: they took the girl to their place of residence on weekends and holidays,
and attended events in her kindergarten.
13. On 16 May 2011 the second applicant was appointed M.’s guardian
with the written consent of the first applicant.
14. On 24 October 2012 the Kirovskiy District Court of St Petersburg
granted the second applicant’s application and deprived K.O.V.-S. of his
parental rights over M.
15. According to the Government, after the death of O., a protracted
family dispute arose between the applicants. The first applicant was
dissatisfied with the way the second applicant fulfilled his duties as M.’s
guardian and insisted that their son, N.B., should take on those obligations.
Furthermore, there was a disagreement as to whether M. should start school
in September 2013.
16. When the question of M.’s schooling arose Mr and Ms Z. decided to
apply to adopt the girl. The applicants at that stage supported their decision.
17. From February to April 2013 Mr and Ms Z. underwent training
courses for individuals wishing to adopt a child left without parental care.
18. On 29 May and 13 June 2013 respectively the Kronverkskoye
municipal entity issued positive decisions on Mr and Ms Z.’s suitability to
become adoptive parents.
19. On 19 June 2013 the head of the Krasnenkaya Rechka municipal
entity received a written statement from the second applicant to the effect
that he did not object to the adoption of M. by Mr and Ms Z.
BOGONOSOVY v. RUSSIA JUDGMENT 3
20. According to the Government, when the first applicant found out
that the second applicant had agreed to the adoption of their granddaughter,
she started to set the child against Mr and Ms Z. and to interfere with their
communication. She further tried, in vain, to deprive the second applicant of
his guardianship of M. and have N.B. appointed as the child’s guardian.
21. In connection with this situation, in the beginning of July 2013
Ms Z., with the consent of the second applicant, lodged an application
seeking to be appointed as M.’s second guardian.
22. On 2 July 2013 the head of the Krasnenkaya Rechka municipal
entity took a decision to appoint Ms Z. as M.’s second guardian. The child’s
place of residence was determined as being with Ms Z.
23. On 4 July 2013 M. moved in with Mr and Ms Z.
24. From that moment on the first applicant began to lodge applications
with the childcare authorities alleging that Ms Z. prevented her
communicating with the child.
25. On 26 September 2013 a meeting was held between the parties on
the subject of the first applicant’s and N.B.’s communication with the child
with the participation of the Krasnenkaya Rechka municipal entity, the
childcare authorities, the Children’s Rights Commissioner in St Petersburg,
the prosecutor’s assistant of the district prosecutor’s office, an expert
specialising in conflict resolution and a psychologist of the District Centre
for Social Assistance to the Family and Children. An oral agreement was
reached between Ms Z. and the first applicant to the effect that the latter’s
meetings with the child were to take place on 5 October and 12 October
2013 for two hours in the presence of Ms Z. On 1 November 2013 Ms Z.
and the first applicant were to come to the office of the Children’s Rights
Commissioner for a debriefing on the meetings.
26. On 9 December 2013 the first applicant informed the childcare
authorities that none of the meetings had taken place.
27. While the first applicant did not have any contact with the child after
that, the second applicant continued communicating with M. until
November 2014. Subsequently Mr and Ms Z. prevented the second
applicant from staying in touch with M.
B. Adoption proceedings
1. Adoption judgment
28. Meanwhile, on 13 November 2013 Mr and Ms Z. lodged an adoption
application with the Primorskiy District Court of St Petersburg (“the District
Court”).
29. On 25 November 2013 the second applicant submitted to the deputy
head of the local administration of the municipal entity Krasnenkaya
4 BOGONOSOVY v. RUSSIA JUDGMENT
Rechka his agreement to M.’s adoption by Mr and Ms Z. He expressed his
wish for the adoption case to be heard in his absence.
30. On 26 November 2013 the District Court granted the application by
Mr and Ms Z. to adopt M. The judgment was not appealed against and
became final on 7 December 2013.
31. In 2015 the applicants, acting separately, applied for restoration of
the procedural time-limit for appeal against the adoption judgment of
26 November 2013 seeking to challenge it on account of, inter alia, their
loss of post-adoption contact with their granddaughter, which ran contrary
to the child’s interests.
2. Second applicant’s appeal against the adoption judgment
32. On 11 February 2015 the second applicant applied to the District
Court to have the procedural time-limit for lodging his appeal against the
adoption judgment of 26 November 2013 restored.
33. On 16 March 2015 the District Court granted the second applicant’s
application.
34. On 13 May 2015 the St Petersburg City Court (“the City Court”)
upheld the judgment of 26 November 2013 on the second applicant’s
appeal. The City Court dismissed the second applicant’s argument to the
effect that the child’s close relatives had been unaware of the adoption
proceedings. It noted that the second applicant had known about the
proceedings, had not raised any objections to the adoption and had asked to
have the case examined in his absence. The City Court further held that
notification, let alone involvement in the proceedings, of the child’s other
relatives (grandmother and uncle), was not required by law. As regards the
second applicant’s argument to the effect that the child’s adoption had led to
the termination of all contact between her and the grandparents, the City
Court stated, relying on Article 67 §§ 1 and 2 of the Family Code, that the
grandfather, grandmother, brothers, sisters and other relatives have a right to
contact with the child and that in the event of a refusal by the child’s parents
to afford them such contact, they are entitled to apply to a court to have the
obstacles to their contact with the child eliminated.
35. On 21 August 2015 the City Court and on 22 December 2015 the
Supreme Court of Russia (“the Supreme Court”), following a prior
application for review of the final judgment, decided not to refer the case for
review in the cassation procedure.
3. First applicant’s attempt to have the procedural time-limit for
appeal against the adoption judgment restored
36. Meanwhile, on 28 May 2015 the first applicant applied to the
District Court to have the procedural time-limit for lodging her appeal
against the adoption judgment of 26 November 2013 restored. Relying on
BOGONOSOVY v. RUSSIA JUDGMENT 5
Article 137 of the Family Code she argued that by failing to involve her in
the adoption proceedings the domestic court had ruptured her family ties
with her granddaughter.
37. However, on 14 July 2015 the District Court dismissed her
application. The District Court held that the first applicant had not been a
party to the proceedings resulting in the judgment of 26 November 2013,
that the above judgment had had no bearing on her rights and obligations,
and therefore she had had no standing to appeal against it. The District
Court further held that the first applicant misinterpreted Article 137 of the
Family Code. It did not follow from the provisions of Article 137 that the
first applicant’s family ties with her granddaughter would be ruptured.
Relying of Article 67 of the Family Code, the District Court considered that
it was open to the first applicant to apply to a court for the determination of
her contact with the child.
38. On 10 September 2015 the City Court upheld the above decision on
appeal.
39. On 11 December 2015 the City Court and on 29 January 2016 the
Supreme Court decided not to refer the above decisions for review in the
cassation procedure.
C. Proceedings relating to the applicants’ contact rights
1. Proceedings pursued by the first applicant
40. On 3 March 2014 the first applicant instituted court proceedings
against Mr and Ms Z. seeking to oblige them not to thwart her contact with
her granddaughter M. and to have determined the contact schedule with the
latter.
41. On 18 April 2014 the administration of the municipal entity
Krasnenkaya Rechka submitted that the girl needed a calm psychological
atmosphere; that she perceived the situation around her as tense and
anxious; and that she did not understand the conflict between the applicants
themselves and between the first applicant and the girl’s adoptive parents.
42. On 16 October 2014 in her conversation with a psychologist M.
submitted that the applicants “had never been friends”, that they often
swore, even in her presence; and that she was not frightened when they
swore because she was used to it.
43. On 21 January 2015 an expert of the Istina Independent Expert
Organisation gave her opinion that the child considered and called Mr and
Ms Z. her parents. She had close emotional bonds with them. Despite the
absence of contact, the girl remembered and loved her grandmother. This
was explained by the fact that the adoptive parents, although preventing
their communication, were not exercising psychological pressure on the girl
and were not denigrating the grandmother. The expert considered, however,
6 BOGONOSOVY v. RUSSIA JUDGMENT
that communication between the child and the grandmother could have a
negative impact on the psychological state of the child, as there was an
unsettled conflict between the applicants and the Z.s: the grandmother
disapproved of the child’s adoption and was challenging its lawfulness. The
expert further considered that the child’s residence with the grandparents
would not be ideal, because, given the instability of interfamilial relations
and the protracted conflict in the applicants’ family, there existed a risk of
the child’s being involved in the adults’ conflict. However, since the girl
retained the positive image of her grandmother and expressed her wish to
communicate with her, it was possible to establish a contact arrangement,
which would provide for an obligatory preparatory stage, including
reconciliation between the relatives.
44. On 10 February 2015 the Pushkinskiy District Court of St Petersburg
established, on the basis of the relevant reports and expert examinations,
that M. still had a positive image of the first applicant and had expressed a
wish to have contact with her, and that it was therefore possible to establish
a contact schedule between them. The Pushkinskiy District Court therefore
ordered Mr and Ms Z. not to place obstacles in the way of the first
applicant’s communication with M. and held that contact between the first
applicant and M. should take place as follows: during the first six months
after the finalisation of the judgment – each second and fourth Sunday of
the month from 3 p.m. to 6 p.m. outside the parents’ and the grandparents’
places of residence in the presence of the parents, and thereafter on the same
conditions without the parents present. A year after the finalisation of the
judgment the first applicant was able, in addition to the above arrangements,
to spend two weeks with M. during the summer holidays with sixty days’
prior notice to the parents of the place of the planned holiday. Mr and Ms Z.
appealed.
45. Following an appeal by Mr and Ms Z., on 17 September 2015 the
City Court quashed the above judgment on appeal and discontinued the
proceedings. The City Court held that the District Court had committed
substantial violations of material and procedural law which resulted in
wrongful conclusions. Relying on Articles 137 §§ 4 and 5 of the Family
Code and clause 18 of the ruling of the Plenary of the Supreme Court no. 8
of 20 April 2006 (see paragraphs 54, 55 and 68 below), the City Court held
that the first applicant had not applied for continued post-adoption contact
with her granddaughter within the adoption proceedings, for which reason
this issue had remained unexamined by [the District Court examining the
adoption case] and no reference had been made in the adoption
judgment regarding continuation of family ties between the first applicant
and her granddaughter after her adoption. In such circumstances, the City
Court considered that civil and family law did not enable the first applicant
to claim the elimination of obstacles to her contact with the child and
determination of the terms of such contact with the latter.
BOGONOSOVY v. RUSSIA JUDGMENT 7
46. On 7 December 2015 the City Court and on 29 February 2016 the
Supreme Court, following a prior application for review of the final
judgment, decided not to refer the decision of 17 September 2015 for review
in the cassation procedure.
2. Proceedings pursued by the second applicant
47. On an unspecified date in 2015 the second applicant instituted court
proceedings against Mr and Ms Z., seeking to oblige them not to thwart his
contact with his granddaughter M. and to have the contact schedule with the
latter determined pursuant to Article 67 of the Family Code.
48. On 1 December 2015 the District Court held that since the adoption
judgment of 26 November 2013 did not contain an indication as to the
continuation of family ties between the second applicant and his
granddaughter after the adoption, the former did not have a right to claim
the elimination of obstacles to contact with the child and determination of
the terms of his contact with his granddaughter. Consequently, the District
Court discontinued the proceedings.
49. On 2 March 2016 the City Court upheld the above decision on
appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Family Code of the Russian Federation
50. The general part of the Family Code provides that grandparents,
brothers, sisters and other relatives are entitled to maintain contact with the
child. If the parents, or one of them, prevent close relatives from seeing the
child, the childcare authorities may order that contact be maintained
between the child and the relative in question. If the parents do not comply
with the childcare authorities’ order, the relative concerned or the childcare
authorities may apply to a court for a contact order. The court must take a
decision in the child’s interests and must take the child’s opinion into
account. If the parents do not comply with the contact order issued by a
court, they may be held liable in accordance with the law (Article 67).
51. Adoption is the preference for the placement of children left without
parental care (Article 124 § 1).
52. Adoption is carried out by a court following an application of an
individual (individuals) wishing to adopt a child. Cases concerning the
adoption of children shall be examined by the court with the obligatory
participation of the adoptive parents, childcare authorities, as well as a
prosecutor (Article 125 § 1).
53. The adoption of children under guardianship (tutelage) requires the
written consent of their guardians (trustees) (Article 131 § 1).
8 BOGONOSOVY v. RUSSIA JUDGMENT
54. Adopted children lose personal non-pecuniary and pecuniary rights
and are relieved of their obligations vis-à-vis their parents (their relatives)
(Article 137 § 2).
55. If one of the parents of an adopted child dies, at the request of one of
the deceased parent’s parents (the child’s grandfather or grandmother) their
personal non-pecuniary and pecuniary rights and obligations in respect of
the child can be maintained if this is required in the child’s interest. The
right of the relatives of the deceased parent to have contact with the adopted
child should be exercised in conformity with Article 67 of the present Code
(Article 137 § 4).
56. The adoption judgment should indicate whether the adopted child is
to maintain relations with one of the parents or relatives of the deceased
parent (Article 137 § 5).
B. Code of Civil Procedure of the Russian Federation
57. Parties to proceedings are to be summoned to a court by registered
mail with confirmation of receipt, by a telephone call or telegram, by fax or
by any other means which will secure delivery of the summons to the
recipient. Summonses must be served on the parties in such a way that they
have enough time to prepare their case and appear at the hearing
(Article 113 §§ 1 and 3).
58. A civil case is to be heard in a court session, with mandatory
notification to all parties of the place and time of the court session
(Article 155).
59. If a party to the case fails to appear at the hearing and there is no
evidence that the party has been duly summoned, the hearing must be
adjourned (Article 167 § 2).
60. The adoption application is examined by a court in camera in the
mandatory presence of the adoptive parent(s), a representative from the
custody and guardianship office, the prosecutor, and the child if the latter is
over 14 years old; the presence of the child’s parents, other interested
parties and the child ‒ if aged between ten and 14 years old ‒ can also be
required if deemed necessary (Article 273).
61. If the court grants the adoption application, the rights and obligations
of the adoptive parents and the adopted child become established on the date
of the entry into effect of the decision (Article 274 § 2).
62. The decision of the court to grant the adoption application may be
appealed against within ten days of its delivery in the final form
(Article 274 § 2.1).
63. A court may restore a procedural term established by a federal law
after its expiry if it finds that reasons for failure to comply with such a term
were valid (Article 112 § 1).
BOGONOSOVY v. RUSSIA JUDGMENT 9
64. Appeal against non-final decisions of first-instance court can be
lodged by parties to the proceedings and other participants of the
proceedings. It can also be lodged by persons who had not been involved in
the proceedings whereby their rights and obligations had been decided upon
(Article 320 §§ 2 and 3).
65. For the relevant provisions of domestic law on review of judicial
decisions in cassation and supervisory-review procedures see Abramyan and
Others v. Russia ((dec.), nos. 38951/13 and 59611/13, §§ 31-45, 12 May
2015).
66. Article 392 of the Code of Civil Procedure of the Russian Federation
contains a list of situations which may justify the reopening of a finalised
case on account of newly discovered circumstances. A judgment of the
European Court of Human Rights finding a violation of the European
Convention on Human Rights in a case in respect of which an applicant
lodged a complaint with the Court should be considered a new circumstance
warranting a reopening (Article 392 § 4 (4)).
C. Relevant domestic practice
67. On 20 April 2006 the Plenary Supreme Court of Russia adopted
ruling no. 8 on the application of legislation by the court during the
examination of cases concerning the adoption of children. Clause 4 provides
that, since pursuant to Article 273 of the Code of Civil Procedure of the
Russian Federation the child’s parents, other interested parties, namely the
child’s relatives, the institution where the child resides or the child himself ‒
if aged between ten and 14 years old ‒ can be involved in the adoption
proceedings where it is deemed necessary, the judge must decide the issue
of the above persons’ participation during the preparation for the hearing so
that the adoption case can be examined in the best interests of the child to
the maximum extent possible.
68. Clause 18 of the ruling further provides that the operative part of the
adoption judgment must indicate, among other things, whether the court
grants the application for continued personal non-pecuniary and pecuniary
rights by one of the parents of the adopted child or by relatives of the
adopted child’s deceased parent.
10 BOGONOSOVY v. RUSSIA JUDGMENT
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 8 AND 13 OF THE
CONVENTION
69. The applicants complained of a violation of their right to maintain
family ties with their granddaughter after her adoption. They relied on
Article 8 of the Convention, which reads as follows:
“1. Everyone has the right to respect for his private and family life, his home and
his correspondence.
2. There shall be no interference by a public authority with the exercise of this right
except such as is in accordance with the law and is necessary in a democratic society
in the interests of national security, public safety or the economic well-being of the
country, for the prevention of disorder or crime, for the protection of health or morals,
or for the protection of the rights and freedoms of others.”
The applicants further complained that they had not had at their disposal
effective domestic remedies in respect of the alleged violation under
Article 8, in breach of Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated
shall have an effective remedy before a national authority notwithstanding that the
violation has been committed by persons acting in an official capacity.”
A. Admissibility
1. Complaints lodged by the first applicant
70. The Court notes that while the proceedings before it were pending,
on 29 August 2018 the first applicant died. The Court has therefore to
consider whether it is justified to continue the examination of the first
applicant’s grievances within the meaning of Article 37 § 1 (c) of the
Convention reading as follows:
“The Court may at any stage of the proceedings decide to strike an application out
of its list of cases where the circumstances lead to the conclusion that
...
(c) for any other reason established by the Court, it is no longer justified to continue
the examination of the application.
However, the Court shall continue the examination of the application if respect for
human rights as defined in the Convention and the Protocols thereto so requires.”
71. The Court notes that following the first applicant’s demise no heir or
close family member expressed a wish to pursue the proceedings in her
stead. The Court further considers that there is no general interest which
would necessitate proceeding with the examination of the complaints raised
by the first applicant.
BOGONOSOVY v. RUSSIA JUDGMENT 11
72. In such circumstances, the Court finds that the conditions provided
for by Article 37 § 1 of the Convention are satisfied and that it is
appropriate to strike out of the list of cases the part of the application
concerning the complaints lodged by the first applicant.
2. Complaints lodged by the second applicant
73. The Court notes that the second applicant’s complaints are not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that they are not inadmissible on any other
grounds. They must therefore be declared admissible.
B. Merits
1. Submissions by the parties
(a) The Government
(i) Article 8 of the Convention
74. The Government acknowledged that there had been an interference
with the second applicant’s right to respect for his family life within the
meaning of Article 8 § 1 of the Convention in connection with the
termination of family relations with his granddaughter. However, the
interference in question had been carried out in accordance with the law and
had been necessary within the meaning of Article 8 § 2 of the Convention.
The national courts had based themselves on expert opinions and had
proceeded from the need to ensure the best interests of the child.
75. In the course of the adoption proceedings the second applicant did
not apply to the domestic court to maintain his personal non-pecuniary and
pecuniary rights and obligations in respect of his granddaughter in
accordance with Article 137 § 4 of the Family Code. The domestic court
had thus been prevented from examining this issue on its own initiative.
Besides, the second applicant had voluntarily refused to participate in the
adoption proceedings.
76. Since the second applicant had no legal right to communicate with
his granddaughter following her adoption, the restoration of his contact with
the child would only have been possible if he had been reconciled with the
Z.s, who had become the child’s parents and who could decide what would
be in her best interests. The Government concluded therefore that there had
been no violation of Article 8 of the Convention in the present case.
(ii) Article 13 of the Convention
77. The Government argued that the second applicant had been afforded
effective domestic remedies against the alleged violation under Article 8 of
the Convention, which he had used (see paragraphs 32-34 and 47-49 above).
12 BOGONOSOVY v. RUSSIA JUDGMENT
(b) The second applicant
78. The second applicant maintained his complaints. He submitted that
the adoption proceedings had been unlawful. In particular, the examination
of the adoption case without him being involved in the proceedings had
deprived him of an opportunity to express his interest in maintaining a
relationship with his granddaughter. This had resulted in the absence of a
reference as to the preservation of his relationship with the child in the
adoption judgment and, as a consequence, it had been impossible for him to
protect his interest in maintaining contact with the child after the
termination of the adoption proceedings. The second applicant believed that
the interference in question had neither been proportionate nor had it been
necessary in a democratic society.
2. The Court’s assessment
(a) Article 8 of the Convention
79. The Court reiterates that there may be “family life” within the
meaning of Article 8 of the Convention between grandparents and
grandchildren where there are sufficiently close family ties between them.
While cohabitation is not a prerequisite, as close relationships created by
frequent contact also suffice, relations between a child and his or her
grandparents with whom he or she had lived for a time will normally be
considered to fall within that category (see Kruškić v. Croatia (dec.),
no. 10140/13, § 108, 25 November 2014).
80. In the present case the second applicant had been taking care of his
granddaughter M. for five years from May 2008, when she had moved in
with him together with her mother at age one year and eight months,
through her mother’s serious illness and death in April 2011, and until
July 2013, when the girl moved out to live with her future adoptive parents
Mr and Ms Z. He had also been M.’s guardian between May 2011 and
December 2013. The Court is satisfied that there was family life between
the second applicant and the child within the meaning of Article 8 of the
Convention. This has not been disputed by the parties.
81. The Court will next examine whether there has been a failure to
respect the second applicant’s family life.
82. The Court notes that where the existence of a family tie has been
established, the State must in principle act in a manner calculated to enable
that tie to be maintained. The relationship between grandparents and
grandchildren is different in nature and degree from the relationship
between parent and child and thus by its very nature generally calls for a
lesser degree of protection. The right to respect for family life of
grandparents in relation to their grandchildren primarily entails the right to
maintain a normal grandparent-grandchild relationship through contact
between them, even though that contact normally takes place with the
BOGONOSOVY v. RUSSIA JUDGMENT 13
agreement of the person who has parental responsibility (see Mitovi v. the
former Yugoslav Republic of Macedonia, no. 53565/13, § 58, 16 April
2015).
83. The Court is mindful, however, that the adoption terminates the legal
relationship between the child and his or her natural parents and family of
origin and, therefore, the Convention obligation to enable the family tie to
be maintained will necessarily change (see paragraph 54 above).
84. The Court observes that in the present case the issue of
post-adoption contact, thus the issue of whether a family tie between the
second applicant and his granddaughter should be maintained after her
adoption was not examined as such by the domestic courts in the course of
the adoption proceedings.
85. The Court notes that the Government acknowledged that there had
been an interference with the second applicant’s right to respect for his
family life within the meaning of Article 8 § 1 of the Convention in
connection with the termination of family ties with his granddaughter after
her adoption.
86. The Court reiterates that an interference breaches Article 8 unless it
is “in accordance with the law”, pursues one or more of the legitimate aims
referred to in paragraph 2 and is, in addition, “necessary in a democratic
society” to achieve those aims. The Court will therefore proceed with
examining whether the interference in question was carried out in
accordance with the law.
87. Pursuant to the Court’s case-law, the wording “in accordance with
the law” requires the impugned measure both to have some basis in
domestic law and to be compatible with the rule of law, that is to say to be
accessible, foreseeable and accompanied by necessary procedural
safeguards affording adequate legal protection against arbitrary application
of the relevant legal provisions (see Surikov v. Ukraine, no. 42788/06, § 71,
26 January 2017, with further references).
88. Turning to the circumstances of the present case, the Court notes that
domestic law provides that adopted children lose personal non-pecuniary
and pecuniary rights and are relieved from obligations vis-à-vis, in
particular, their relatives. However, where at the request of the adopted
child’s grandparents the court examining the adoption case decides, in the
interests of the child, to maintain their personal non-pecuniary and
pecuniary rights and obligations in respect of the child, an application by
such relatives for contact with the child can be made under Article 67 of the
Family Code (see paragraphs 54-55 above). The Court notes in this
connection that the second applicant did not make an application for
post-adoption contact with his granddaughter before the District Court
examining the adoption case at first instance. This issue was therefore not
examined by the District Court and no reference to post-adoption contact
between the child and the second applicant was made in the operative part
14 BOGONOSOVY v. RUSSIA JUDGMENT
of the adoption judgment, resulting in the loss of any legal tie between them
and making it impossible for him to seek contact with the child under
Article 67 of the Family Code as of the adoption judgment’s becoming final
on 7 December 2013 (see paragraphs 30 and 68 above).
89. The Court takes note of the second applicant’s argument to the effect
that his failure to apply for maintaining personal non-pecuniary and
pecuniary rights and obligations in respect of his granddaughter before the
District Court examining the adoption case in the first instance resulted
from the District Court’s omission to involve him in the adoption
proceedings. The Court notes, however, that the domestic law did not
provide for mandatory presence of the second applicant as the child’s
guardian in the examination of the adoption application. This issue was left
to the discretion of the court examining the adoption case (see paragraphs
60 and 67 above). It further notes that the second applicant was aware of the
adoption proceedings, having consented to the adoption in writing and
expressed the wish for the case to be heard in his absence (see paragraph 29
above). Nothing therefore suggests that the second applicant was prevented
from or unable to apply to the District Court for continued contact with his
granddaughter after her adoption or that the adoption judgment delivered by
the District Court on 26 November 2013 had been unlawful.
90. The Court notes that subsequently, when the consequences of the
adoption proceedings entailing the permanent severance of family ties
between the second applicant and his granddaughter became clear to him,
and possibly after his relationship with Mr and Ms Z. had deteriorated (see
paragraph 27 above), the second applicant pursued two sets of proceedings
seeking to restore his contact with the child. In the first of those
proceedings, the second applicant succeeded in having restored the
procedural time-limit for lodging his appeal against the adoption judgment
and challenged the judgment in question on account of, in particular, the
loss of contact with his granddaughter following her adoption. The City
Court, however, dismissed his appeal without discussing the question of
whether it was appropriate for him to have contact with his granddaughter,
at the same time stating that it remained open to him to apply to a court for
the determination of his contact with his granddaughter in accordance with
Article 67 of the Family Code (see paragraphs 32-34 and 49 above).
91. However, when the second applicant brought proceedings against
Mr and Ms Z. seeking elimination of obstacles to his contact with his
granddaughter and determination of the terms of his contact with her under
Article 67 of the Family Code, the courts discontinued the proceedings,
stating that, since the adoption judgment of 26 November 2013 did not
contain an indication as to the continuation of family ties between the
second applicant and his granddaughter after the adoption, the former did
not have a right to claim the elimination of obstacles to contact with the
BOGONOSOVY v. RUSSIA JUDGMENT 15
child and determination of the terms of his contact with her (see paragraphs
47-49 above).
92. Having regard to the foregoing, a question arises as to whether the
domestic law governing the issue of post-adoption contact between the
adopted child and his or her relatives was clear enough and foreseeable in
its application in so far as it did not expressly provide that the rights of
relatives of the adopted child were transferred to the adoptive parents or
otherwise ceased on adoption, unless an application by relatives had been
made in the course of the adoption proceedings for continued relations,
including contact, and specific provision made for them to this effect in the
adoption judgment.
93. Presuming, however, that this was implied in the relevant provisions
of the domestic law (see paragraph 88 above), once the second applicant’s
request for restoration of the procedural time-limit for lodging his appeal
against the adoption judgment had been granted by the District Court it was
then for the City Court dealing with the second applicant’s appeal to
examine the issue of whether he should have post-adoption contact with the
child, in particular by deciding whether this corresponded to the child’s
interests, and if so, to include the relevant provision in the operative part of
the adoption judgment. Instead the City Court upheld the adoption judgment
and led the second applicant to believe that it was open to him to have the
issue of his post-adoption contact with his granddaughter settled after the
termination of the adoption proceedings pursuant to the procedure provided
by Article 67 of the Family Code. In reality, though, no such remedy was
available to him because, as the City Court and the District Court found in
the Article 67 proceedings, in the absence of a specific provision as to
continued post-contact in the adoption judgment, no application for contact
could be made.
94. Thus, as a result of the way the City Court interpreted and applied
the relevant provisions of domestic law in the re-opened adoption
proceedings, the second applicant was entirely and automatically excluded
from his granddaughter’s life after her adoption even though the issue of
post-adoption contact was before the City Court.
95. Having regard to the foregoing and proceeding on the assumption of
sufficient clarity of domestic law governing the subject of post-adoption
contact between the adopted child and his or her relatives, the Court
considers that the failure of the City Court to examine the merits of the issue
of the second applicant’s post-adoption contact with his granddaughter
amounted to disrespect for the second applicant’s family life. There has
accordingly been a violation of Article 8 of the Convention.
(b) Article 13 of the Convention
96. Having regard to its finding relating to Article 8 of the Convention
(see paragraphs 79-95 above), the Court considers that it is not necessary to
16 BOGONOSOVY v. RUSSIA JUDGMENT
examine separately whether there has been a violation of Article 13 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
97. Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols
thereto, and if the internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford just satisfaction to
the injured party.”
A. Damage
98. The second applicant claimed 100,000 euros (EUR) in respect of
non-pecuniary damage.
99. The Government considered that the second applicant’s claim was
excessive.
100. The Court considers that the second applicant must have suffered,
and continues to suffer, distress as a result of his inability to maintain a
contact with his granddaughter. In the light of the circumstances of the case,
and making an assessment on an equitable basis, as required by Article 41,
the Court awards the second applicant EUR 5,000 euros under this head.
B. Costs and expenses
101. The second applicant claimed EUR 1,000 for his legal
representation before the Court.
102. The Government submitted that no award of costs and expenses
should be made.
103. Pursuant to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been shown
that these have been actually and necessarily incurred and are reasonable as
to quantum. In the present case, regard being had to the documents in its
possession and the above criteria, the Court rejects the second applicant’s
claim for costs and expenses, finding that it has not been shown that he has
made, or is liable to make, any disbursements to his representative before
the Court.
C. Default interest
104. The Court considers it appropriate that the default interest rate
should be based on the marginal lending rate of the European Central Bank,
to which should be added three percentage points.
BOGONOSOVY v. RUSSIA JUDGMENT 17
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Decides to strike the application out of its list of cases in accordance with
Article 37 § 1 (c) of the Convention in so far as it concerns the
complaints raised by the first applicant;
2. Declares the complaints under Articles 8 and 13 of the Convention
raised by the second applicant admissible;
3. Holds that there has been a violation of Article 8 of the Convention;
4. Holds that there is no need to examine the complaint under Article 13 of
the Convention;
5. Holds
(a) that the respondent State is to pay the second applicant, within three
months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, EUR 5,000 (five
thousand euros), plus any tax that may be chargeable, in respect of
non-pecuniary damage, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement;
(b) that from the expiry of the above-mentioned three months until
settlement simple interest shall be payable on the above amount at a rate
equal to the marginal lending rate of the European Central Bank during
the default period plus three percentage points;
6. Dismisses the remainder of the second applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 5 March 2019, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Stephen Phillips Vincent A. De Gaetano
Registrar President